June 23, 2008
DHS Funding Bill Includes Key NTEU Priorities
The Senate Appropriations Committee last approved a funding bill for the Department of Homeland Security (DHS) that incorporates several legislative priorities for NTEU—including prohibiting the agency from using any funds to implement a regressive new personnel system.
DHS has been attempting to limit or do away with many employee rights by devising a new personnel system for agency workers. NTEU has won three federal court victories in this fight against management’s efforts to put in place language that will erode employees’ collective bargaining, due process and appeal rights.
“The regressive personnel system that DHS has tried to impose on employees would only harm the agency and hurt its ability to execute its mission,” said NTEU President Colleen M. Kelley.
The final language of the fiscal 2009 DHS appropriations bill agreed to by the committee includes an additional 682 new U.S. Customs and Border Protection Officers (CBPOs)—143 more than the White House requested. In addition, it provides $200 million to fund the law enforcement officer (LEO) retirement benefit that NTEU won for CBPOs and that goes in effect next month.
The committee’s action is largely in line with approval earlier this month by the House Appropriations Homeland Security Subcommittee in limiting funding for a new personnel system at DHS, providing additional CBP staffing and funding the LEO benefit. The full House Appropriations Committee is scheduled to consider the bill this week.
The legislation also includes funding for staffing needs at the Transportation Security Administration (TSA).
“At the current time, the TSA workforce is not adequately staffed,” Kelley said. “The agency suffers from extremely poor morale and sky-high attrition rates which depress the number of Transportation Security Officers (TSOs) far below the level that Congress has funded."
For more information, click here or visit <http://dhsunion.org/PressRelease/PressRelease.aspx?ID=1293>.
Arbitration Win Could Lead to Scheduling Changes
CBP has issued a memo to the field addressing its scheduling obligations under federal law. This action can be attributed to NTEU’s aggressive efforts in dealing with unfair scheduling practices, including a recent arbitration win.
The memo informed CBP managers of the requirement that CBP employees be afforded the following scheduling protections:
• Assignments to tours of duty are scheduled in advance over periods of not less than one week;
• The two days outside the basic workweek are consecutive;
• The working hours in each day in the basic workweek are the same;
• The occurrence of holidays may not affect the designation of the basic workweek; and
• Breaks in working hours of more than one hour may not be scheduled in a basic workday.
The memo further stated employees are entitled to compliance with these scheduling rules to help ensure some sanity in their workdays unless CBP “would be seriously handicapped in carrying out its functions” or that “costs would be substantially increased.”
CBP’s decision to publicize these scheduling rules is a welcome development, especially if it results in scheduling decisions in accordance with the five criteria listed above.
Unfortunately, the memo overstated when the general scheduling rules can be ignored. The remainder of the memorandum muddies the scheduling waters by permitting managers to ignore the rules in two ways, both of which NTEU believes are illegal.
First, CBP has invented a third exception that would permit scheduling contrary to law if the port determines that “flexibility is essential to meet conditions over which CBP has no control.” Secondly, it appears that CBP has acted prematurely by permitting local supervisors to use the two legitimate exceptions referenced above without CBP first conducting a nationwide “reasoned determination” as federal courts have required before allowing a federal agency to deviate from federal scheduling law.
NTEU will have to wait and see whether the CBP memorandum leads to scheduling decisions consistent with the law. Contact your NTEU chapter leaders if you have any questions on this issue.
Fired CBPO Returned to Job
In another arbitration victory, a CBP Officer who was fired by the agency for alleged inappropriate conduct in pursuing and apprehending a subject, won reinstatement earlier this month with back pay and interest.
Robert Rhodes, a member of NTEU Chapter 154 (CBP Niagara Frontier) and a 19-year CBP employee, was fired in 2006 for allegedly engaging in inappropriate conduct relating to the use of force in apprehending a subject who was loitering on the Rainbow Bridge pedestrian walkway while Rhodes was apprehending a drug suspect.
In the decision, the arbitrator found that CBP had failed to meet its burden of proof, saying that Rhodes acted within the rules guiding the use of force as spelled out by the agency and that there is “no credible evidence,” to support allegations that Rhodes’s conduct was wrongful.
Get more CBP news at www.DHSunion.org/.
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